Citation Nr: 0534378
Decision Date: 12/21/05 Archive Date: 12/30/05
DOCKET NO. 03-24 184 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an initial disability rating in excess of
50 percent for service-connected post traumatic stress
disorder (PTSD).
2. Entitlement to an initial disability rating in excess of
0 percent for service-connected residuals of a shell fragment
wound to the left arm.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESSES AT HEARING ON APPEAL
Veteran; veteran's spouse
ATTORNEY FOR THE BOARD
Saramae M. Kreitlow, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1968 to
April 1970. He received the Purple Heart.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia.
By a June 2001 rating decision, the RO granted service
connection for PTSD and assigned a 10 percent evaluation,
effective from January 30, 2001. The veteran filed a Notice
of Disagreement as to the evaluation in July 2001. In a July
2003 rating action, the RO increased the rating to 50
percent, effective from January 30, 2001, the effective date
of the grant of service connection.
By an April 2003 rating decision, the RO granted service
connection for a residual scar, shell fragment wound, left
arm and assigned a noncompensable evaluation, effective from
July 12, 2001.
The veteran and his spouse appeared and testified at a Travel
Board hearing held at the RO before the undersigned Acting
Veterans Law Judge in August 2004.
The veteran presented new evidence at his hearing in August
2004 and by mail in October 2005. Each submission was
accompanied by a written waiver of consideration by the RO.
As such, the Board has considered the evidence in the
decision herein. 38 C.F.R. § 20.1304 (2005).
In an August 2005 statement, a VA psychiatrist indicated that
the veteran's mental health conditions had worsened to the
point that it has affected his ability to work. This raised
a claim of entitlement to a total rating for compensation
purposes based upon individual unemployability. See Roberson
v Principi, 251 F.3d 1378 (2001). This issue is referred to
the RO for appropriate development.
The issue of entitlement to a compensable rating for
residuals of left arm fragment wound is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDING OF FACT
The veteran's PTSD is productive of occasional suicidal
ideation, nightmares, intrusive thoughts, flashbacks, sleep
disturbance, irritability, angry outbursts, near constant
anxiety, near constant depression, constricted affect, almost
daily panic attacks, short term memory loss, isolation,
occupational difficulties, marital problems, and difficulty
dealing with stress.
CONCLUSION OF LAW
The criteria for an increased disability rating of 70 percent
for PTSD are met as of March 11, 2003. 38 U.S.C.A. §§ 1155,
5103, 5103A and 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code
9411 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Board must first address VA's notice and duty to assist
requirements. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information and evidence (medical or lay) that is necessary
to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002
& Supp. 2005); 38 C.F.R. § 3.159(b) (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in his or her possession that pertains to the claim.
38 C.F.R. § 3.159(b)(1) (2004); see also Pelegrini v.
Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
Notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. Id.; see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In the present case, notice was provided to the veteran in
April 2001 in connection with his claim for service
connection for PTSD, prior to the initial AOJ decision. The
veteran was also sent a development letter specific to his
claim for service connection for PTSD. These letters advised
the veteran of the first, second and third elements as stated
above. He also was provided the text of the relevant
regulation implementing the law with respect to this notice
requirement and told it was his responsibility to support the
claim with appropriate evidence. Indeed, the veteran
submitted evidence to consider in connection with his claim.
Although the notice letters provided to the veteran do not
specifically contain the fourth element (i.e., tell the
claimant to provide any relevant evidence in his or her
possession), the Board finds that the letters and other
documents sent by VA, read as a whole, give notice to the
veteran of VA's desire to obtain additional information and
evidence supporting and substantiating the claim or possibly
leading to such information and evidence. Id.
VA's Office of General Counsel has determined that if, in
response to notice of its decision on a claim for which VA
has already given the required notice under 38 U.S.C.A. §
5103(a), VA receives a notice of disagreement that raises a
new issue, 38 U.S.C.A. § 7105(d) requires VA to take proper
action and issue a statement of the case if the disagreement
is not resolved, but 38 U.S.C.A. § 5103(a) does not require
VA to provide notice of the information and evidence
necessary to substantiate the newly raised issue. VAOPGCPREC
8-2003. The veteran was provided proper notice in April 2001
on his service connection claim. When his notice of
disagreement raised the new issue of the proper rating to be
assigned his now service-connected disability, VA was not
required to provide additional notice. Nevertheless, the
statement of the case set out the criteria by which the
veteran's disability was evaluated, thereby advising him of
the type of evidence that would be needed to show entitlement
to the benefits sought. The Board finds, therefore, that VA
has met its notice obligations.
With respect to the VA's duty to assist, the RO attempted to
obtain all medical records identified by the veteran. VA
outpatient records are in the file for treatment from March
2001 through July 2004. The RO also obtained private
treatment records identified by the veteran. The veteran was
notified in an August 2003 Statement of the Case of what
evidence the RO had obtained and considered in rendering its
decision. He has not identified any additional evidence. VA
is only required to make reasonable efforts to obtain
relevant records that the veteran has adequately identified
to VA. 38 U.S.C.A. § 5103A(b)(1). VA, therefore, has made
every reasonable effort to obtain all records relevant to the
veteran's claim.
The RO provided the veteran appropriate VA examinations in
May 2001 and March 2003. There is no objective evidence
indicating that there has been a material change in the
severity of the veteran's PTSD since he was last examined.
The veteran has not reported receiving any recent treatment
(other than at VA, which records were obtained), and there
are no records suggesting an increase in disability has
occurred as compared to the prior VA examination findings.
The Board concludes there is sufficient evidence to rate the
service-connected condition fairly.
Thus, the Board finds that VA has satisfied the duty to
assist the veteran. Therefore, he will not be prejudiced as
a result of the Board proceeding to the merits of his claim.
II. Analysis
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder.
38 U.S.C.A. § 1155. Separate diagnostic codes identify the
various disabilities. Id. Evaluation of a service-connected
disorder requires a review of the veteran's entire medical
history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2.
It is also necessary to evaluate the disability from the
point of view of the veteran working or seeking work,
38 C.F.R. § 4.2, and to resolve any reasonable doubt
regarding the extent of the disability in the veteran's
favor, 38 C.F.R. § 4.3. If there is a question as to which
evaluation to apply to the veteran's disability, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating; otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
The veteran's claim for a higher evaluation for PTSD is an
original claim that was placed in appellate status by his
disagreement with the initial rating award. In these
circumstances, separate ratings may be assigned for separate
periods of time based on the facts found - a practice known
as "staged" ratings. Fenderson v. West, 12 Vet. App. 119,
126 (1999).
The veteran's service-connected PTSD psychiatric disorder is
evaluated under Diagnostic Code 9411. The regulations
establish a general rating formula for mental disorders.
38 C.F.R. § 4.130. Ratings are assigned according to the
manifestation of particular symptoms. However, the use of
the term "such as" in 38 C.F.R. § 4.130 demonstrates that
the symptoms after that phrase are not intended to constitute
an exhaustive list, but rather are to serve as examples of
the type and degree of the symptoms, or their effects, that
would justify a particular rating. Mauerhan v. Principi, 16
Vet. App. 436, 442 (2002). Accordingly, the evidence
considered in determining the level of impairment under
38 C.F.R. § 4.130 is not restricted to the symptoms provided
in the diagnostic code. Instead, VA must consider all
symptoms of a claimant's condition that affect the level of
occupational and social impairment, including, if applicable,
those identified in the DSM-IV (American Psychiatric
Association: Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994)). Id. at 443.
The current 50 percent disability rating requires a showing
of:
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships.
The criteria for a 70 percent rating are:
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships.
And, the criteria for a 100 percent rating are:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name.
38 C.F.R. § 4.130.
The medical records show Global Assessment of Functioning
(GAF) scores of 48 and 50 over the past few years. A GAF
score is highly probative as it relates directly to the
veteran's level of impairment of social and industrial
adaptability, as contemplated by the rating criteria for
mental disorders. See Massey v. Brown,
7 Vet. App. 204, 207 (1994).
A GAF score of 41-50 contemplates serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job). See DSM-IV at 44-47. A GAF score of 51-60
contemplates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). Id.
The Board has reviewed all the evidence of record, which
consists of the veteran's statements; the Board hearing
transcript from August 2004; the reports of the VA
examination conducted in May 2001 and March 2003; VA
treatment records from March 2001 through July 2004; private
treatment records for November 2000 through September 2001;
and employment records from July 2001. Although the Board
has an obligation to provide adequate reasons and bases
supporting this decision, it is not required to discuss each
and every piece of evidence in the case. The Board will
summarize the relevant evidence where appropriate.
A review of the medical evidence shows that the veteran was
initially seen by private doctors for his PTSD until
September 2001. Thereafter, he has been seen at the VA
Medical Center approximately once every three months for his
PTSD. He has also undergone group therapy at the Vet Center
a few times a month since March 2001. The Vet Center
treatment records report that the veteran's symptoms
initially consisted of depression and sleep deprivation with
occasional other symptoms such as anxiety, isolation,
intrusive thoughts, and nightmares. After September 2001,
the treatment records report increased symptoms of anxiety,
panic attacks (sometimes reported as daily), isolation,
depression, anger, nightmares, irritability, and
hypervigilance.
The veteran underwent a VA examination in May 2001. The
veteran reported having PTSD symptoms such as nightmares,
isolation, distrust of authority figures, and sleeping
problems. Mental status examination showed he was alert and
oriented in all spheres but he had unsuspected amount of
difficulty with the serial seven subtraction. He reported
that his wife handles all the accounting, and he failed
accounting courses he tried to take in the 1970s. He did
have some problems in remembering words at times, and only
remembered one out of three words after five minutes, and he
could only remember the last four presidents. The veteran
also reported feeling as if people are watching and following
him and making fun of him. The examiner's assessment was
mild to moderate PTSD with manifestations limited to some
difficulty with sleep, depression and nightmares, and some
cognitive impairment probably due to depression and lack of
concentration. The examiner scored his GAF at 48.
The veteran underwent a more recent VA examination in March
2003. At the time of the interview, he appeared very tense.
He kept his sunglasses on and kept rubbing his hands during
the interview. He reported having dreams that wake him up at
night, flashbacks, being tense and nervous all the time, not
being able to be around people, getting angry easily, a
history of suicidal thoughts but none present at that time,
inability to trust people, and trouble concentrating and
remembering things. He reported working full time for the
same employer since 1983. He has been married since 1969 and
lives with his wife. They have three adult children. He
reported that he is able to do activities of daily living and
handle finances. He reported having no close friends.
Mental status examination indicated he was neatly dressed and
groomed; oriented in three spheres; his speech was coherent;
mood was anxious and affect constricted; and his thought
processes showed decreased spontaneity and content was
positive for sleep disturbance, flashbacks, nightmares,
paranoia, frequent suicidal ideation (but no suicidal
thoughts at present, no plans), and panic attacks, but no
obsessive or ritualistic behaviors, no hallucinations, or
homicidal thoughts were present. His long term memory was
good (he remembered his birth date), but his short term
memory was limited (he could name the current president
only). He had adequate impulse control, and his judgment and
insight were fair. The assessment was PTSD, chronic, with a
GAF score of 50.
Recently submitted evidence includes an August 2004 letter
from the Clinical Coordinator of the Atlanta Vet Center who
reported that the veteran continues to experience severe
depression, sleep disturbance, nightmares, daily intrusive
thoughts, daily panic attacks, hypervigilance, and flashbacks
resulting in severe limitations in employment.
An August 2005 letter signed by a VA staff psychiatrist noted
the veteran's multiple service-connected disabilities and
commented that his mental health conditions have worsened to
the point to the point he is unable to work.
After considering all the evidence, the Board finds that the
veteran's disability picture is more accurately reflected by
a 70 percent disability rating, but not before March 11,
2003. The medical records clearly show that the veteran's
PTSD has worsened over the years this appeal has been
pending. The March 11, 2003 VA examination shows that the
veteran's symptoms have worsened in addition to the veteran
having new symptoms, such as suicidal ideation. The
treatment records before this date do not reveal any reported
incidents of suicidal ideation. Since suicidal ideation is a
criterion for warranting a 70 percent disability rating, the
veteran is entitled to this rating from the date the evidence
shows that he has this symptom. Additionally, the evidence
shows that the veteran has difficulty maintaining
relationships; and, that due to his PTSD, he has had marital
difficulties and no close friends. He is not active in the
community. He mainly socializes only with his family. He
has also had difficulties at his employment. He has been on
probation, and had problems with supervisors. He has
switched from the evening shift to the night shift, which has
less people working. He has had an increased loss of short
term memory. The Board thus finds that, when taken all
together, the veteran's disability picture is more closely
approximated by a 70 percent rating.
The veteran is not, however, entitled to a 100 percent
disability rating. The evidence does not show that he has
total occupation and social impairment. At the hearing in
August 2004, the veteran testified that he was still working
despite having some problems on the job. In addition, there
is no evidence that he has symptoms such as gross impairment
in thought processes or communications; persistent delusions
or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; or memory loss for names of close relatives,
own occupation, or own name.
For the foregoing reason, the veteran's appeal is granted and
a disability rating of 70 percent is awarded, but only as of
March 11, 2003.
ORDER
Entitlement to an initial increased rating of 70 percent for
PTSD is granted as of March 11, 2003, subject to controlling
regulations governing the payment of monetary benefits.
REMAND
The Board remands the issue of entitlement to a compensable
rating for the veteran's service-connected left arm wound
residuals. Although the additional delay is regrettable, it
is necessary to ensure that there is a complete record upon
which to decide the veteran's claim so that he is afforded
every possible consideration.
The veteran underwent a VA examination in March 2003. At
that time, the examiner diagnosed the veteran to have
degenerative joint disease of the acromioclavicular joint of
the left shoulder. It is unclear from his findings, however,
whether the degenerative joint disease is related to the
veteran's left arm injury in service. Such an opinion is
needed prior the Board's consideration of the veteran's
claim.
Accordingly, this case is REMANDED for the following:
1. The RO should advise the appellant that he
should submit to VA copies of any evidence
relevant to this claim that he has in his
possession and has not already submitted. See
38 C.F.R. § 3.159(b) (2005).
2. The veteran should be scheduled for a VA
orthopedic examination. The claims file must
be provided to the examiner for review in
conjunction with the examination. The
examiner should indicate in the report that
the claims file was reviewed, and provide a
complete rationale for all conclusions and
opinions.
All necessary tests and studies should be
conducted in order to ascertain the nature of
the veteran's residuals of a left arm wound.
Specifically, the examiner should determine
whether the veteran has degenerative joint
disease of the left shoulder, and, if so,
express an opinion as to whether it is at
least as likely as not related to the left arm
injury in service. The examiner should
determine the limitation of motion, if any, of
the veteran's left arm and discuss whether
there is pain on movement, swelling,
tenderness, deformity or atrophy of disuse.
The examiner should elicit information as to
the frequency, duration, and severity of any
associated symptomatology, and loss of
function in daily activities, including work
and physical activity.
3. Thereafter, the RO should again
review the veteran's claim, to include
consideration of staged ratings. If any
benefit sought on appeal remains denied,
the veteran and representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
M. E. LARKIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs